INTERGOVERNMENTAL AGREEMENT

BETWEEN THE CITY OF PORTLAND AND THE STATE OF OREGON, BUREAU OF LABOR AND INDUSTRIES (BOLI)

FOR ENFORCEMENT OF PORTLAND’S CIVIL RIGHTS ORDINANCE

 This Agreement is entered into by and between the City of Portland, Oregon, a municipal corporation, (CITY), and the Oregon Bureau of Labor and Industries (SUBRECIPIENT) pursuant to ORS 190.110.

RECITALS:

1.  The Portland City Council enacted City Code (“PCC”) Chapter 23.01, “Civil Rights” to prohibit discrimination in employment, housing, and public accommodations on the basis of race, religion, color, sex, marital status, familial status, disability, sexual orientation, source of income, or Vietnam era veteran’s status.

2.  On December 13, 2000, the Portland City Council amended PCC Chapter 23.01 to add “gender identity” as a prohibited basis for discrimination.

3.  BOLI already enforces the anti-discrimination provisions contained in ORS Chapter 659A and has substantial expertise in such enforcement.

4.  The City wishes BOLI to continue to enforce those provisions of PCC Chapter 23.01 which are not currently covered by ORS Chapter 659A. The City Council has provided for funding for this activity through an allocation of General Funds for the FY 2002-03 Housing and Community Development Budget in the amount of $20,184.

5.  BOLI desires to continue to be the enforcement agent for the City.

6.  The City and BOLI agree that BOLI will enforce “gender identity” claims that are also covered under state law without charge to the City and will refer “gender identity” claims under the City ordinance that are not covered under state to a City mediation program.

TERMS:

1.  Scope of BOLI Services

BOLI shall provide those services set out in Exhibit A hereto.

BOLI shall structure its provision of services to gender identity claimants as described in Exhibit D hereto.

BOLI shall achieve and report on the following Performance Measures:

•  Handle up to 20 cases depending upon complaint filings

•  Complainants will be interviewed by an investigator within 20 days of the filing date

•  Complaints will be processed within 90 days of filing

•  98% of the complaints will meet the Division’s quality characteristics

2.  Scope of City Services

To assist BOLI in carrying out its obligations hereunder, the City shall perform the services set out in Exhibit B hereto.

3.  Reimbursement of Expenses

The City shall pay BOLI for work performed under this Agreement as set out in Exhibit C hereto. The payment shall be full reimbursement for work performed, for services rendered, and for all labor, materials, supplies, equipment, and incidentals necessary to perform the work and services. Payment shall be made upon submission of a detailed invoice of expenses.

It is agreed that total reimbursement under this Agreement shall not exceed TWENTY THOUSAND ONE HUNDRED AND EIGHTY-FOUR DOLLARS ($20,184).

4.  Term

a)  Effective Date: This Agreement shall be effective when signed by both parties and shall cover expenses incurred by BOLI after July 1, 2002.

b)  Termination Date - New Case Intake: This Agreement will remain in effect as to intake of new cases until June 30, 2003 unless terminated as provided in paragraph 5.

c)  Termination Date - Disposition of Cases Filed With BOLI: With respect to cases initiated with BOLI prior to June 30, 2003, or the date of early termination pursuant to paragraph 5, this Agreement shall remain in effect through completion of BOLI’s administrative processing of such cases.

5.  Early Termination

a)  The City and BOLI, by mutual written agreement, may terminate the intake of new cases under this Agreement at any time.

b)  Either party may terminate the intake of new cases under this Agreement upon thirty (30) days written notice to the other party.

c)  Nothing herein shall operate as a bar to termination of the Agreement in the event that either party is found to lack the legal capacity to perform under the Agreement.

6.  City’s Option to Undertake Enforcement

The City reserves the right to undertake enforcement of complaints filed under PCC 23.01. Such enforcement will be discussed and planned in advance with BOLI so that coordination is possible.

7.  Contract Managers

a)  For the City, the Contract Manager shall be Andy Miller, Bureau of Housing and Community Development, or such other employee named at the discretion of the City.

b)  For BOLI, the Contract Manager shall be the CRD Administrator, or such other employee named at the discretion of BOLI.

c)  Contract Managers shall have the authority to approve invoices for payment and minor changes to the Scope of Work. Any changes will be communicated in writing.

8.  Breach of Agreement

a)  BOLI or the City shall breach this Agreement if it fails to perform any substantial obligation under the Agreement, except as provided in subsection b of this section.

b)  Neither BOLI nor the City shall have breached this agreement by reason of any failure to perform a substantial obligation under the Agreement if the failure arises out of causes beyond its control and without its fault or negligence. Should either BOLI or the City fail to perform because of circumstances described in this subsection, BOLI and the City shall make a mutually acceptable revision in the scope of services or compensation sections of this Agreement.

9.  Legal Services

The parties anticipate that the Portland City Attorney’s Office will continue to provide legal advice and assistance relating to the interpretation and application of the City ordinance. These services will be provided to BOLI free of charge. Otherwise, BOLI shall be solely responsible to bear any legal costs or fees arising out of this Agreement, except that where BOLI requires outside legal services for enforcement of claims arising solely under the City ordinance against the City as respondent or in relation to records confidentiality under ORS 192.001-.505, the City shall be liable for BOLI’s expense.

10.   General Contract Provisions

A.  TERMINATION FOR CAUSE. If, through any cause, the Subrecipient shall fail to fulfill in timely and proper manner his/her obligations under this Contract, or if the Subrecipient shall violate any of the covenants, agreements, or stipulations of this Contract, the City shall have the right to terminate this Contract by giving written notice to the Subrecipient of such termination and specifying the effective date thereof at least 30 days before the effective date of such termination. In such event, all finished or unfinished documents, data, studies, and reports prepared by the Subrecipient under this Contract shall, at the option of the City, become the property of the City and the Subrecipient shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents.

Notwithstanding the above, the Subrecipient shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the Contract by the Subrecipient, and the City may withhold any payments to the Subrecipient for the purpose of setoff until such time as the exact amount of damages due the City from the Subrecipient is determined.

B.  TERMINATION FOR CONVENIENCE. The City and Subrecipient may terminate this Contract at any time by mutual written agreement. If the Contract is terminated by the City as provided herein, the Subrecipient will be paid an amount which bears the same ratio to the total compensation as the services actually performed bear to the total services of the Subrecipient covered by this Contract less payments of compensation previously made.

The City, on 30 days written notice to the Subrecipient, may terminate this Agreement for any reason deemed appropriate at its sole discretion.

C.  REMEDIES. In the event of termination under Section A hereof by the City due to a breach by the Subrecipient, then the City may complete the work either itself or by agreement with another subrecipient, or by a combination thereof. In the event the cost of completing the work exceeds the amount actually paid to the Subrecipient hereunder plus the remaining unpaid balance of the compensation provided herein, then the Subrecipient shall pay to the City the amount of excess.

The remedies provided to the City under sections A and C hereof for a breach by the Subrecipient shall not be exclusive. The City also shall be entitled to any other equitable and legal remedies that are available.

In the event of breach of this contract by the City, then the Subrecipient's remedy shall be limited to termination of the contract and receipt of payment as provided in section B hereof.

In the event of termination under Section A, the City shall provide the Subrecipient an opportunity for an administrative appeal to the Bureau Director.

D.  CHANGES. The City may, from time to time, request changes in the scope of the services or terms and conditions hereunder. Such changes, including any increase or decrease in the amount of the Subrecipient's compensation, shall be incorporated in written amendments to this Contract. Any change that increases in total the amount of compensation payable to the Subrecipient of $20,703 or more must be approved by ordinance of the City Council. The Bureau Director may approve increases in compensation that result in total compensation of less than $20,703. Other changes, including changes to scope of work and budget line items, may be approved by the Project Manager.

 E.  NON-DISCRIMINATION. In carrying out activities under this contract, the Subrecipient shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, handicap, familial status or national origin. The Subrecipient shall take affirmative actions to insure that applicants for employment are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, age, handicap, familial status or national origin. Such action shall include but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Subrecipient shall post in conspicuous places, available to employees and applicants for employment, notices provided by the City setting for the provisions of this nondiscrimination clause. The Subrecipient shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. The Subrecipient shall incorporate the foregoing requirements of this paragraph in all of its contracts for work funded under this contract, except contracts governed by Section 104 of Executive Order 11246. The Subrecipient will comply with the equal employment and non-discrimination requirements of Portland City Code Sections 3.100.005 (City Policies Relating to Equal Employment Opportunity, Affirmative Action and Civil Rights), 3.100.042 (Certification of Contractors), and Chapter 23 – Civil Rights.

F.  ACCESS TO RECORDS. The City, or their duly authorized representatives, shall have access to any books, general organizational and administrative information, documents, papers, and records of the Subrecipient which are directly pertinent to this contract, for the purpose of making audit examination, excerpts, and transcriptions. All required records must be maintained by the Subrecipient for three years after the City makes final payment and all other pending matters are closed.

G.  MAINTENANCE OF RECORDS. The Subrecipient shall maintain records on a current basis to support its billings to the City. The City or its authorized representative shall have the authority to inspect, audit, and copy on reasonable notice and from time to time any records of the Subrecipient regarding its billings or its work hereunder. The Subrecipient shall retain these records for inspection, audit, and copying for four years from the date of completion or termination of this contract.

H.  AUDIT OF PAYMENTS. The City, either directly or through a designated representative, may audit the records of the Subrecipient at any time during the four-year period established by Section G above.

If an audit discloses that payments to the Subrecipient were in excess of the amount to which the Subrecipient was entitled, then the Subrecipient shall repay the amount of the excess to the City.

I.  INDEMNIFICATION. The Subrecipient shall hold harmless, defend, and indemnify the City and the City's officers, agents, and employees against all claims, demands, actions, and suits (including all attorney fees and costs) brought against any of them arising from the Subrecipient's work or any subcontractor's work under this contract.

Notwithstanding paragraph I, the Subrecipient shall indemnify and hold harmless City from all claims in any forum resulting from the negligent acts or omissions of the Subrecipient, its officers, agents and employees in the performance of this agreement. The Subrecipient’s liability hereunder is limited to those things for which it may be held liable under Article XI of the Oregon Constitution and the Oregon Tort Claims Act (ORS 30.260 – 30.300) and its liability shall not exceed the amounts specified therein.

J.  WORKERS' COMPENSATION INSURANCE.

(a)  The Subrecipient, its subcontractors, if any, and all employers working under this Agreement, are subject employers under the Oregon Worker's Compensation law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage for all their subject workers. A certificate of insurance, or copy thereof, shall be attached to this Agreement and shall be incorporated herein and made a term and part of this Agreement. The Subrecipient further agrees to maintain worker's compensation insurance coverage for the duration of this Agreement.

(b)  In the event the Subrecipient's worker’s compensation insurance coverage is due to expire during the term of this Agreement, the Subrecipient agrees to timely renew its insurance, either as a carrier-insured employer or a self-insured employer as provided by Chapter 656 of the Oregon Revised Statutes, before its expiration, and the Subrecipient agrees to provide the City of Portland such further certification of worker's compensation insurance a renewals of said insurance occur.

(c)  If the Subrecipient believes itself to be exempt from the worker's compensation insurance coverage requirement of (a) of this subsection, the Subrecipient agrees to accurately complete the City of Portland's Questionnaire for Workers' Compensation Insurance and Qualification as an Independent Contractor prior to commencing work under this Agreement. In this case, the Questionnaire shall be attached to this Agreement and shall be incorporated herein and made a term and part of this Agreement. Any misrepresentation of information on the Questionnaire by the Subrecipient shall constitute a breach of this Agreement. In the event of breach pursuant to this subsection, City may terminate the agreement immediately and the notice requirement contained in Section A, TERMINATION FOR CAUSE, hereof shall not apply.

K.  LIABILITY INSURANCE.

(a) The Subrecipient shall maintain public liability and property damage insurance that protects the Subrecipient and the City and its officers, agents, and employees from any and all claims, demands, actions, and suits for damage to property or personal injury, including death, arising from the Subrecipient's work under this contract. The insurance shall provide coverage for not less than $200,000 for personal injury to each person, $500,000 for each occurrence, and $500,000 for each occurrence involving property damages; or a single limit policy of not less than $500,000 covering all claims per occurrence. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the state of Oregon during the term of the agreement. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that it shall not terminate or be canceled without 30 days written notice first being given to the City Auditor. If the insurance is canceled or terminated prior to completion of the contract, the Subrecipient shall provide a new policy with the same terms. The Subrecipient agrees to maintain continuous, uninterrupted coverage for the duration of the contract. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the Subrecipient.

(b) The Subrecipient shall maintain on file with the City Auditor a certificate of insurance certifying the coverage required under subsection (a). The adequacy of the insurance shall be subject to the approval of the City Attorney. Failure to maintain liability insurance shall be cause for immediate termination of this agreement by the City.

In lieu of filing the certificate of insurance required herein, the Subrecipient shall furnish a declaration that the Subrecipient is self-insured for public liability and property damage for a minimum of the amounts set forth in ORS 30.270.

L.  SUBCONTRACTING AND ASSIGNMENT. The Subrecipient shall not subcontract its work under this contract, in whole or in part, without the written approval of the City. The Subrecipient shall require any approved subcontractor to agree, as to the portion subcontracted, to fulfill all obligations of the Contract as specified in this contract. Notwithstanding City approval of a subcontractor, the Subrecipient shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to the Subrecipient hereunder. The Subrecipient agrees that if subcontractors are employed in the performance of this contract, the Subrecipient and its subcontractors are subject to the requirements and sanctions of ORS Chapter 656, Workers' Compensation. The Subrecipient shall not assign this contract in whole or in part or any right or obligation hereunder, without prior written approval of the City. Subcontractors shall be responsible for adhering to all regulations cited within this contract.

M.  INDEPENDENT CONTRACTOR STATUS. The Subrecipient is engaged as an independent contractor and will be responsible for any federal, state, or local taxes and fees applicable to payments hereunder.

The Subrecipient and its subcontractors and employees are not employees of the City and are not eligible for any benefits through the City, including without limitation, federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits.

N.  REPORTING REQUIREMENTS. The Subrecipient shall report on its activities in a format and by such times as prescribed by the City.

O.  CONFLICTS OF INTEREST. No City officer or employee, during his or her tenure or for one year thereafter, shall have any interest, direct or indirect, in this contract or the proceeds thereof.

No City officer or employees who participated in the award of this contract shall be employed by the Subrecipient during the period of the contract.

P.  OREGON LAWS AND FORUM. This contract shall be construed according to the laws of the State of Oregon.

Any litigation between the City and the Subrecipient arising under this contract or out of work performed under this contract shall occur, if in the state courts, in the Multnomah County court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the State of Oregon.

Q.  COMPLIANCE WITH LAWS. In connection with its activities under this contract, the Subrecipient shall comply with all applicable federal, state, and local laws and regulations.

In the event that the Subrecipient provides goods or services to the City in the aggregate in excess of $2,500.00 per fiscal year, the Subrecipient agrees it has certified with the City's Equal Employment Opportunity certification process.

R.  INDEPENDENT FINANCIAL AUDITS/REVIEWS. Any subrecipient receiving $300,000 or more in City funding, in any program year, is required to obtain an independent audit of the City-funded program(s). Any subrecipient receiving between $25,000 and $300,000 in City funds, in any program year, is required to obtain an independent financial review. Additionally, contractors receiving between $25,000 and $300,000 in federal funds may be required to obtain a full audit, if the City believes it is warranted. Two copies of all required financial audits or reviews will be submitted to the designated City Project Manager within thirty days of their completion.

S.  SEVERABILITY. If any provision of this agreement is found to be illegal or unenforceable, this agreement nevertheless shall remain in full force and effect and the provision shall be stricken.

T.  INTEGRATION. This agreement contains the entire agreement between the City and the Subrecipient and supercedes all prior written or oral discussions or agreements.

U.  TARGETING. Each year the City designates target areas, which receive focused services through the Bureau of Housing and Community Development. As appropriate, the Subrecipient may be asked to provide marketing and outreach for its services and/or collect demographic information on its clients, relative to these target areas. Boundaries of target areas will be provided to any Subrecipient who is asked to provide such information and assistance.

V.  TRAINING. The Bureau of Housing and Community Development will provide training for all new Contractors and for Contractors who have experienced significant organizational changes, which would warrant training. This training may be carried out on an individual basis or as part of a general training program, at the discretion of the City.

W.  PROGRAM AND FISCAL MONITORING. The City through the Bureau of Housing and Community Development shall monitor on a regular basis to assure contract compliance. Such monitoring may include, but are not limited to, on site visits, telephone interviews, and review of required reports and will cover both programmatic and fiscal aspects of the contract. The frequency and level of monitoring will be determined by the City Project Manager.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by duly authorized representatives as of the date of their signatures.

Dated this _______________________ day of __________________________, 2001.

CITY OF PORTLAND      OREGON BUREAU OF LABOR AND INDUSTRIES

________________________________  _________________________________

Erik Sten          Jack Roberts

Commissioner of Public Works    Commissioner

APPROVED AS TO FORM:

_______________________________

Jeffrey L. Rogers

City Attorney

EXHIBIT A

DESCRIPTION OF ENFORCEMENT SERVICES TO BE RENDERED BY THE BUREAU OF LABOR AND INDUSTRIES ("BOLI")

I.  GENERAL DESCRIPTION OF SERVICES

BOLI shall provide administrative enforcement of complaints filed under Portland City Code ("PCC") 23.01.050 B., 23.01.060 B., and 23.01.070 B. This includes enforcement of claims filed against the City itself.

II.  ENFORCEMENT STEPS

A.  Filing a Complaint

1.  Immediately upon receipt of a complaint alleging a violation of PCC 23.01.050 B., 23.01.060 B., or 23.01.070 B., BOLI shall commence processing of the complaint.

2.  The procedures for filing a complaint are as follows:

a.  An individual makes an inquiry to the BOLI Civil Rights Division (CRD).

b.  An intake officer talks with the individual to determine whether he/she has a potential basis for filing a complaint under PCC Chapter 23.01.

c.  If the intake officer determines that the individual has a basis for filing a complaint, one of the following two steps will be taken:

(1)  If the complaint involves potential violation of PCC 23.02.060 B. (discrimination in housing) the complainant will be referred to the Fair Housing Council of Oregon which may schedule testing and referral to the private bar, or back to BOLI;

(2)  If the complaint involves a potential violation of 23.02.050 B. (discrimination in employment) or 23.01.070 B. (discrimination in public accommodations), an interview will be scheduled at BOLI.

d.  The intake officer will draw up a complaint which the individual will review and sign. The signature must be notarized. CRD will provide notary service if needed.

e.  The notarized charge will be forwarded to a lead worker investigator for assignment to a senior civil rights investigator responsible for in-depth Complainant interviews and prompt charge assessment.

f.  A complaint must be filed with BOLI within one year of the alleged unlawful practice. If the alleged unlawful practice is of a continuing nature, the right to file a complaint exists so long as the complaint is filed within one (1) year form any date of occurrence.

B.  Notice of Filing

1.  Notification letters will be sent to Respondent requesting a position statement within 14 days of filing. The Respondent’s position statement will consist of the proper identification of the Respondent and a response to the specific allegations in the complaint.

2.  Notification letters will be sent to the Complainant requiring that he/she contact the investigator within 14 days to schedule a complainant interview.

C.  Charge Assessment

1.  Complainants will be given an in-depth interview within 30 days from the date the complaint is filed with the Division. The interview will cover each specific harm suffered by the Complainant and the dates of occurrence. For each harm suffered, the Complainant must be able to specify relevant incidents to show specific intent or disparate treatment. The Complainant must be able to articulate linkages or causal connection between the harm and the protected class. Witnesses and comparators must be identified if the Complainant was in a position to have access to such information.

2.  If the Complainant states that missing evidence exists, they will be given 14 days to provide the evidence upon request of the investigator. Failure to provide the required information will result in a dismissal.

3.  Investigators will utilize the Civil Rights Division’s screening criteria to separate the cases into A, B, or C categories.

a.  “A” CASES are those which more likely than not will result in substantial evidence cases. Full investigation will be conducted until the investigator is able to write a substantial evidence administrative determination or a dismissal memo.

b.  “B” CASES are those which need more information in order to determine whether it is an A or C case. The investigator may utilize the investigative tools of FFC, specific interrogatory, and witness/Respondent interviews as appropriate.

c.  “C” CASES are those which are dismissed because the evidence gathered would not be sufficient to result in a substantial evidence finding. In most cases, Complainants will have been interviewed and a Respondent position statement will be in the case file.

Some examples of cases that can be resolved under C category dismissal are: nonjurisdictional, charges unsupported by any direct or circumstantial evidence of discrimination, and the Complainant was in a position to have access to such evidence, the Complainant was not credible.

4.  When a dismissal has been determined, the Complainant will be informed that he/she may pursue their case through the courts and will receive a state notice of complainant’s right to file a civil suit. The investigator who is responsible for deciding a dismissal must explain in the notice why the action to dismiss was taken.

5.  Dismissal cases require the investigator to write a brief memo to the case file which must be signed by a second investigator and which states the reason why the case has been dismissed. A letter will be sent to the Complainant and Respondent advising them of the dismissal.

6.  Cases that have not been dismissed after the Complainant interview will be assigned to a B team investigator who will continue the investigation on B cases. Cases in B category can be dismissed if it is determined that there are insufficient evidence to demonstrate that the case will not result in a cause finding.

D.  Pre-Determination Settlement (PDS)

1.  BOLI encourages complainants and respondents to resolve complaints by mutual agreement at any time before an Administrative Determination is made. CRD will notify both parties of this option in the notice of filing and during its initial contacts with them. CRD will mediate between the parties to aid such a settlement. CRD will not, however, permit these negotiations to become so lengthy that they defeat the overall purpose of the ordinance enforced by BOLI.

2.  If, before an Administrative Determination is made, the parties agree upon settlement, a CRD representative will draft a PDS agreement. The agreement will state:

a.  That a "no-fault" settlement has been reached;

b.  That the complainant and respondent accept the terms of the agreement as a resolution of the complaint;

c.  The specific action(s) the respondent and/or complainant will take in settlement of the complaint and the time within which the action(s) will be taken; and

d.  That BOLI may investigate any alleged breaches of the agreement.

3.  The complainant, respondent and CRD representative will sign the PDS agreement. Upon execution of the PDS agreement, CRD will close the complaint and notify the complainant and respondent.

E.  Fact-Finding Conference

1.  At such times as it deems appropriate, CRD may hold a fact-finding conference. When appropriate, the conference will occur within thirty (30) days of the filing of a complaint. Such a conference is part of CRD’s investigation of the complaint. The purpose of the conference will be:

a.  To identify the undisputed elements of the complaint;

b.  To define and, if possible, resolve the disputed elements of the complaint; and

c.  To attempt to settle the complaint.

2.  A representative of CRD will schedule the conference, notifying both the complainant and the respondent of the date, time and place. The CRD representative may require the complainant and/or respondent to provide information and documents for use at the conference and will make such request at least ten (10) days prior to the conference.

3.  The complainant and the respondent may be accompanied by counsel, but counsel’s role is advisory only. The conference will be informal and cross-examination will not be allowed. A complainant’s failure to appear shall not result in administrative closure of the case through dismissal of charges against the respondent, unless such failure is part of a sustained pattern of non-cooperation, making enforcement of the case unreasonable.

4.  If the conference does not result in settlement, the CRD representative will either:

a.  Issue an Administrative Determination stating that there is substantial evidence of unlawful discrimination in support of the complainant’s allegations; or

b.  Determine that there is insufficient evidence to issue an Administrative Determination and issue a dismissal memo or refer the case to an investigator to conduct a complete investigation.

F.  Investigation

1.  If a complaint is not resolved through pre-determination settlement or otherwise dismissed, CRD will investigate the allegations contained in the complaint. The purpose of the investigation is to determine objectively whether there is substantial evidence of unlawful discrimination.

2.  The investigation will include interviews with the complainant, respondent and anyone else who may be a source of evidence. The investigation may also involve the examination and analysis of written documents.

3.  Except at the request of a witness, neither the respondent nor the respondent’s representative will be present during interviews of witnesses who are the respondent’s nonsupervisory employees or former employees. Upon request, CRD will provide the complainant, respondent or witness with a copy of any existing written transcript or summary of his/her own testimony.

4.  The investigator will make written requests to the respondent for documents, records, files or other sources of evidence. The respondent will be required to provide such information within twenty-one (21) days of the date of the investigator’s written request. If the respondent is unable to provide the information within that time, he/she will notify the investigator within ten (10) days of the date of receipt of the investigator’s request. The notification will be in writing and will state the specific time, not to exceed fourteen (14) days beyond the original due date, when the information will be provided.

5.  The investigator will make all reasonable efforts to obtain the respondent’s voluntary consent for access to the respondent’s business premises, relevant evidence and sources of evidence when the nature of the complaint requires such access. With the respondent’s consent, the investigator, while on the respondent’s business premises, may examine records and copy such materials and may take the statements of such employees as are relevant to the allegations of the complaint. If the respondent does not give voluntary consent, BOLI will exercise its vested authority to obtain the necessary information.

G.  Administrative Determination/Dismissal

1.  Upon completion of the investigation, CRD will issue an Administrative Determination based on the statements of the complainant, respondent and witnesses and the analysis of records and other relevant evidence. A copy of the Administrative Determination will be provided to the complainant and respondent.

2.  If CRD finds no substantial evidence of unlawful discrimination, BOLI will close the complaint and notify the complainant and respondent of the closure. It will notify the complainant of his/her right, if any, to file a civil suit. If CRD finds substantial evidence of unlawful discrimination, BOLI will notify the complainant and respondent. The complaint will be assigned to a CRD representative for conciliation. However, the Commissioner may proceed directly to a contested case hearing if the interests of justice so require.

3.  BOLI will process all cases from perfected charges through Administrative Determination within 90 days.

4.  The Administrative Determination will be final.

H.  Conciliation

1.  If CRD finds substantial evidence of unlawful discrimination, a representative of CRD will seek to eliminate the effects of the unlawful discriminatory act(s) by conference, conciliation and persuasion. BOLI will not allow such negotiations to be so lengthy that they defeat the purposes of the ordinance enforced by BOLI. If an agreement is reached which is satisfactory to the complainant and respondent, CRD’s representative will draft a conciliation agreement. The agreement will state:

a.  That the complainant and respondent accept the terms of the agreement as a resolution of the complaint;

b.  The specific action(s) the respondent and/or complainant will take in settlement of the complaint and the time within which the action(s) will be taken; and

c.  That CRD will investigate any alleged breaches of the agreement.

2.  Upon execution of the agreement (signed by both parties), CRD will close the complaint and notify the complainant and respondent.

3.  BOLI will complete the investigation and conciliation activities within 150 days after receipt of the complaint.

I.  Failed Conciliation -- Contested Case Hearing

1.  When CRD is unable to obtain voluntary compliance through conference, conciliation or persuasion, CRD will refer the complaint to its hearing presenter to be prepared for a contested case hearing.

2.  Should legal counsel outside of BOLI become necessary during any phase of a contested case hearing under this Agreement, with the exception of any case in which the City is the respondent, BOLI will utilize the services of an attorney provided by the Portland City Attorney’s Office, which services shall be provided at no expense to BOLI.

III.  TRAINING

BOLI will continue to provide its investigators with training on enforcing the City’s Civil Rights Ordinance. A Deputy City Attorney will be available to assist in training sessions for BOLI staff.

IV.  RECORDS CONFIDENTIALITY

ORS 192.501 (8) conditionally exempts investigatory information relating to any complaint filed under ORS 659A.040 or 659A.045, until such time as the complaint is resolved under ORS 659A.050, or a final administrative determination is made under ORS 659A.060. This exemption may not govern records filed with BOLI under City Code Chapter 23.01. BOLI will therefore ensure that to the extent possible, records submitted to it meet the requirements detailed in ORS 192.502 (3) "Confidential Disclosures by Citizens."

V.  ACCESS TO RECORDS BY THE CITY

BOLI will provide the City Attorney’s Office and the Contract Manager with full access to open and closed case files, unless such access is inappropriate because the City is the respondent. On-site inspection will be arranged at least two working days in advance with the Civil Rights Division.

VI.  STATUS CONFERENCES AND QUARTERLY REPORTS

A.  BOLI and the City anticipate regular meetings of respective staff to discuss how enforcement of PCC Chapter 23.01 is proceeding. The failure to schedule or complete any status conference shall not affect BOLI’s obligation to provide written reports as required by this section.

B.  BOLI shall prepare quarterly statistics showing the status of claims filed under this Agreement and shall provide such reports to the Contract Manager and to the City Attorney, Attention Madelyn Wessel, on or before October 30, January 30, April 30 and July 30. Such BOLI reports shall contain a breakdown of all complaints made to BOLI, categorized by references to PCC Chapter 23.01. Where complaints include claims of discrimination under federal or state discrimination laws, that information should be included. The report shall indicate at what broad stage of the BOLI administrative process the complaints are currently to be found. (e.g., prior to or post-fact finding conference, prior to or post-investigative stages, prior to or post-Administrative Determination, etc.)

EXHIBIT B

The City shall assist BOLI in carrying out its obligations by providing accessible staff support as well as those services discussed in the main Agreement and in Exhibit A, including:

a.  Legal Services as discussed under II(I)(2). ENFORCEMENT STEPS - "Failed Conciliation."

b.  Staff Training as discussed under III. TRAINING.

c.  Staff Support and Monitoring as discussed under VI. STATUS CONFERENCES.

EXHIBIT C

PROPOSED CONTRACT CHARGES

Detailed Quarterly Billing Statements:

 BOLI shall prepare a detailed quarterly statement of charges specifying the individual cases for which payment is sought, with a breakdown of charges.

Contract Charges

 BOLI will charge $1036.07 per case for the processing of complaints from II. A. "Filing a Complaint" to II. G. "Consultation" as described in Exhibit A. This charge includes administrative closures (due to lack of jurisdiction, uncooperative complainant, bankruptcy of respondent, etc.). Administrative closures run fewer than 25 percent of caseload. This practice of charging for administrative closures is consistent with current BOLI contracts with other entities.

Contested Case Hearings

 BOLI will charge actual costs for case preparation and hearings. Although costs vary with difficulty per hearing, costs average $2,800. The Division projects to process 1 case through administrative hearings.

Post-hearing administrative expenses

 BOLI will charge actual costs for such expenses. Examples include testimony transcription, settling and receiving supersedeas bonds and holding money in trust pending appeal.

BREAKDOWN OF PER-CASE COSTS

FOR CIVIL RIGHTS DIVISION CASES

PERSONNEL

SERVICES AND SUPPLIES

EXHIBIT D